Transparency

Appeals Court Rules Against New York Police Unions, Says Misconduct Records Can Be Released

The 2nd Circuit rejected the police unions' arguments that disclosure would invade officers' privacy and put them in danger.

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The U.S. Court of Appeals for the 2nd Circuit ruled Tuesday that New York City could release police misconduct records, rejecting arguments from police unions that the disclosure would invade officers' privacy and put them in danger.

A three-judge panel unanimously upheld a lower court's ruling from last August finding that New York City's planned release of misconduct records, including unsubstantiated allegations, was not likely to endanger police officers.

"We fully and unequivocally respect the dangers and risks police officers face every day," the court wrote. "But we cannot say that the District Court abused its discretion when it determined that the Unions have not sufficiently demonstrated that those dangers and risks are likely to increase because of the City's planned disclosures. In arriving at that conclusion, we note again that many other States make similar misconduct records at least partially available to the public without any evidence of a resulting increase of danger to police officers."

The ruling is a major blow to New York police, firefighter, and prison guard unions in their fight to keep misconduct records secret. Last June, the state legislature, over the furious objections of the unions, repealed Section 50-a of New York's civil rights statute, a law that had kept swaths of police records hidden from the public for more than four decades. 

Police departments and unions used Section 50-a to hide, or attempt to hide, things like substantiated citizen complaints of excessive force, shooting reports, body camera footage, reports of lost police guns, transcripts and outcomes of administrative trials, and even anonymized data on police use-of-force.

Reason reported on how Section 50-a stonewalled the families of police shooting victims looking for answers, like Constance Malcolm. In 2012, New York City Police Department (NYPD) officer Richard Haste and several other narcotics officers tailed Malcolm's son, 18-year-old Ramarley Graham, from a bodega into Graham's apartment, believing he had a gun, and fatally shot the unarmed young man. Malcolm has been fighting for years to pry information from the NYPD about the shooting and the officers involved.

After Section 50-a was repealed last June amid nationwide protests against police violence, a coalition of unions sued to block New York City's planned release of misconduct records, arguing that the disclosure of unsubstantiated complaints would lead to retaliation against police officers and harm their reputations and future employment prospects.

But before the unions filed their lawsuit, New York City's Civilian Complaint Review Board released a trove of records to the New York Civil Liberties Union (NYCLU) and ProPublica. The NYCLU published a database of more than 320,000 complaints filed against NYPD officers since 1985. The New York Times reported that only 3 percent of those complaints were substantiated.

Last August, U.S. District Judge Katherine Polk Failla declined to grant a preliminary injunction barring New York City from releasing unsubstantiated misconduct allegations, ruling that the unions had failed to demonstrate the release would cause concrete harms or risks for officers.

"Plaintiffs have presented speculation only that these disclosures will increase risk of officer harm," Failla said, noting that such records are public in a dozen other states.

Tuesday's decision upholding Failla's ruling opens the door once again for the city to release more records, although city officials did not say when that might happen.

The next release is expected to include a wider array of records, including not just civilian complaints but also internal NYPD misconduct investigations.

"Now we can go even further to restore accountability and trust to the disciplinary process," Mayor Bill de Blasio said in a statement. "Good riddance to 50-a. We look forward to releasing this data and will seek clarity from the court regarding when these records can be released."

De Blasio's statement elides his administration's long record of defending Section 50-a in court, which only expanded the scope of the law and made it harder to dislodge.

A spokesperson for the coalition of firefighter, police, and prison guard unions told the New York Daily News that the coalition will continue to fight.

NEXT: Judge Threatens to Jail North Carolina Town Officials for Seizing Man’s Money, Refusing To Return It

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  1. What happens when the police departments say “Fuck you, make me”?

    1. They will probably find some unknown perpetrator as shredded all records, and some unknown hacker has wiped their database clean.

      1. Like, with a cloth?

        1. I don’t think they’d hire anyone using the alias Hillarious Clintone. It would need to be a more professional disguise.

  2. So when they say police misconduct records can be released, they mean police misconduct records going forward, right? Not that past police misconduct records can be released. That would be some sort of ex post facto law since police in the past were operating under the assumption that police misconduct records would not be released and if they had known the records would be released they wouldn’t have committed the misconduct in the first place. (And, no, this isn’t really being sarcastic because this is the exact argument a bunch of the California cops used for why when California passed a law requiring the release of police misconduct records they interpreted it to mean “from here on out, police misconduct records must be released”. Or at least that’s what they argued as a stalling tactic while they suddenly and entirely coincidentally decided they desperately needed to do a routine purge of all their police misconduct records.)

    1. Records aren’t conduct. Unless officers want to make the case that they engaged in misconduct intentionally under the assumption that the records would not be released, then I don’t think this logic holds. Especially since the records were not sealed, per se, just not public… so they could have been made public via judicial order previously. You couldn’t punish someone for not having previously released records under the new law, of course.

      But they can try the argument, a court might think differently.

  3. The simple solution? Stop keeping records of misconduct. Presto!

  4. Wouldn’t police misconduct at this point be something akin to “obey the law, engage in your community, and pursue complete transparency?”

  5. Does this really matter since the cops are all going to get defunded into ‘people who talk to the crazies’?

  6. Lawyers are frequently (and correctly) dragged for being a profession full of scumbags. However, most lawyers will at least admit that there are lots of scumbag lawyers.

    But you rarely, if ever, see a cop willing to admit that it’s a profession full of low IQ, unaccountable psychopaths? Why is that? Are the “good” officers scared of retaliation from the scumbags?

    1. I had a cop friend wor in IA he didn’t think there were many good cops

      1. I worked in an “unofficial” cop bar in Cleveland back in 1981. It was unofficial in that no cops owned it but they were allowed to eat and drink for free, on or off duty, in exchange for looking the other way at whatever went on there. Some of those guys were scary, especially the vice squad cops who were just the same as the people they were supposed to arrest. They’d walk into the manager’s office with shopping bags and reemerge two hours later empty handed and suddenly there was lots of cocaine available in the bar. On Friday and Saturday nights the liquor room would be full of cops in uniform having a few drinks before going back out on patrol. Later that night they’d come back and drink and smoke dope with us until the sun came up. It was a fun place to work but didn’t do a lot for one’s faith in our heroes in blue.

        1. “the vice squad cops who were just the same as the people they were supposed to arrest”

          Not surprising. I suspect a lot of vice squads are just eliminating competition when they arrest someone. The rest just use it as an excuse to feel superior to “scum.”

    2. “Are the “good” officers scared of retaliation from the scumbags?”

      Absolutely. Go ahead and try to be the hero. The next time you’re in a sticky situation, back up units will drag their feet. Or, maybe your partner decides to call in sick the day you are told to serve a warrant on an armed felon. Shit, maybe they’ll just play it real sly and throw **you** under the bus the next time a civilian complaint is filed. You want to make detective? Sergeant? Or do you want to cut parking tickets for the rest of your life? The choice is yours.

      Get with the program, or get the fuck out.

    3. it’s a profession full of low IQ, unaccountable psychopaths? Why is that?

      Well what’s a union for, after all?

    4. I have some buddies that are cops. Good people, at least at first. One kinda turned really disturbing after he became a cop. I don’t talk to him much anymore. But another one is as close to a “good cop” as you can reasonably get these days, I suppose. Unfortunately at least one of his Sgts is a literal psycho who broke a guy’s hand on YouTube for not respecting him enough, and wasn’t punished. So I’m guessing his bosses are also psychos, which is why I don’t understand why he stays in that job.

      Anywho… I used to be pro cop. It was cops who taught me not to be pro-cop. Mostly because of this exact thing. Even my buddies (and one Youtuber I used to follow) really struggled to be honest about cops, and then finally would start dishing about bad ones and somehow never have a satisfactory answer to “so what happened to him?” That taught me pretty well that the Thin Blue Line isn’t a line between crime and society, it’s a line between cops and accountability.

  7. We told them to wage a war on drugs. TV shows & movies made hero’s. They just did what they were told.

    Check out Campaign Zero and their 10 policy solutions for policing.
    All good ideas. Maybe a Libertarian magazine (like Reason?) could start promoting Campaign Zero?

  8. Hooray for NY. There is a similar controversy here in New Jersey. The attorney general has directed that local police departments release the names and charges against all officers who receive major disciplinary action, defined as any disciplinary action greater than a five day suspension. The state police unions have challenged this directive. The directive is on hold pending a decision by the state Supreme Court on its validity.

    There also seems to be an emerging trend here in New Jersey involving officer-involved shootings that started once the state took over responsibility for investigating them from local departments. The officers at issue immediately submit psychologist reports claiming that the officers are suffering from trauma and posttraumatic stress syndrome as a result of being involved in the shooting. Included in this “trauma“ is the “trauma“ of having their actions criticized by the family members of the victims. Based on these reports, the officers immediately file applications for disability retirement. This would allow them to retire early at 60% of their pay along with health insurance coverage at least until age 65. I have seen this happen far too often for it to be a coincidence. The state police unions must be coaching them to do this.

  9. That is going to be a big file. Someone is going to have to buy some more servers.

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